In a federal court filing, US Attorney William Ihlenfeld for the Northern District of West Virginia said the Energy Marketing Co. Inc. impoundment was avoiding proper safety examinations and was potentially dangerous.
The 101 North Hollow Coal Refuse Impoundment has been in operation since January 1 2009 and had garnered about two dozen Mine Safety and Health Administration citations since then.
MSHA has labelled it “high hazard”, meaning a failure would likely cause fatalities, and says it has not been certified by a professional engineer, as required by law, for two years.
"While there is no known or obvious danger posed by the dam at this time, the continued failure to have the dam examined by a professional engineer means that there may be a problem that MSHA has not identified," Ihlenfeld wrote in a memorandum supporting the Labor Department's request for a preliminary injunction.
"MSHA's inspections are not an acceptable substitute for the certification of an independent professional engineer," he added.
"MSHA inspectors generally are not qualified to perform such a review and their inspections are generally focused on conditions as they exist at that time.
"EMCI and LaRosa's [owner] continued failure to comply with the certification requirements hampers MSHA's ability to evaluate ... and adequately protect the public and the environment from this potentially deadly hazard."
Department officials are calling for the judge to immediately halt use of the EMCI impoundment, order a professional examination and recoup nearly $13,000 in overdue fines.
The dam has a maximum capacity equivalent to 765 Olympic-sized swimming pools and according to Ihlenfeld, if burst could cause a serious environmental disaster.
